An administrative law judge for the Equal Rights Division of the Department of
Workforce Development issued a decision in this matter. A timely petition for review was
filed.

The commission has considered the petition and the positions of the parties, and it has
reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees
with the decision of the ALJ, and it adopts the findings and conclusion in that decision
as its own, except that it makes the following modifications:

Paragraphs 8 through 15 of the administrative law judge's Findings of Fact are deleted,
and the following paragraphs are substituted therefor:

"8. The complainant continued to be absent from work through the month of August.
During this time the complainant made no contact with the respondent regarding his status
and submitted no medical information. The complainant's supervisor, Mr. Urbaniak, was
unaware of the circumstances surrounding the complainant's absence and did not know if or
when the complainant intended to return to work.

9. In a letter dated September 3, 1996, the complainant's insurance carrier notified
the complainant that he had been approved for benefits through September 8, 1996, and that
he was expected to return to work on the first normally scheduled workday thereafter. A
copy of this letter was also sent to the respondent. The complainant's supervisor, Mr.
Urbaniak, first saw the letter on September 10, 1996.

10. On September 10, 1996, the complainant telephoned Mr. Urbaniak and told him that
the insurance company was no longer going to pay for his hospitalization, but that his
doctor could prescribe medication for him to take at home. Based upon this statement and
the information in the September 3 letter, Mr. Urbaniak assumed that the complainant was
coming back to work. Mr. Urbaniak did not specifically ask the complainant when he planned
to return to work and the complainant said nothing on the subject.

11. On September 13, 1996, the complainant's insurance carrier sent the complainant
another letter, which indicated that his disability period was extended through October 6,
1996 and that he was expected to return to work thereafter. A copy of the letter was also
sent to the respondent.

12. On September 17, 1996, Mr. Urbaniak sent the complainant a letter notifying him
that, effective September 18, 1996, his employment was terminated due to "continued
absence without explanation." The collective bargaining agreement in effect at the
time provided for the cessation of seniority after three consecutive days of absence
without notice.

13. At the time Mr. Urbaniak sent the termination letter he had not yet seen the
September 13 letter from the complainant's insurance carrier and continued in his
assumption that the complainant had been released for work on September 8.

14. On September 26, 1996, subsequent to the complainant's discharge, the complainant's
doctor wrote a letter to Mr. Urbaniak notifying him that the complainant was under his
care for a "mental/nervous condition" and that he "is totally disabled from
work from 8/7/96 to 10/6/96." The letter stated that the complainant's return to work
"is unknown at this time and approximately will be able to return to work in one to
two months, 12/1/96."

15. As of the date of the hearing, November 13, 1997, the complainant had not been
released to return to work and was receiving $1,153.00 per month in Social Security
benefits."

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed: January 28, 1999lewande.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that the September 13
letter from his insurance carrier was intentionally held or ignored by the respondent
until September 18 in order to support a self-serving claim by the respondent that it
received no notice of the complainant's ongoing disability. However, the administrative
law judge credited Mr. Urbaniak's testimony regarding the date on which he first viewed
the September 13 letter, and the commission sees no reason to disagree with this
credibility assessment. There is nothing inherently incredible about Mr. Urbaniak's
testimony that he had not yet seen the September 13 letter when he drafted the discharge
letter on September 17, and his assertions in this regard are consistent with evidence in
the record indicating that he did not receive the September 3 letter from the insurance
carrier until the 10th of September. Moreover, the record simply does not support a
conclusion that Mr. Urbaniak was motivated to discharge the complainant based upon his
disability. The evidence did not establish that Mr. Urbaniak perceived the complainant as
an individual with a disability or that he was aware of the reason for the complainant's
incapacity prior to the termination of his employment. The complainant's previous medical
leaves of absence were for reasons unrelated to his disability and it was not until
September 26, when his physician first notified Mr. Urbaniak of the complainant's
diagnosis, that Mr. Urbaniak became aware of the complainant's mental illness. Further,
even assuming for the sake of argument that Mr. Urbaniak was aware of the complainant's
disability, the fact that he did not discharge the complainant in the first month of his
absence--during which time the complainant made no effort to contact the respondent about
his status--and then waited five business days after the complainant's September 8
return-to-work date, rather than the three days provided for in the contract, indicate
that his stated reason for discharging the complainant was genuine and not a pretext for
discrimination.

The commission further notes that, even if the complainant had succeeded in
demonstrating that the respondent discharged him because of his disability, a finding of
discrimination would not be warranted under the facts in this case. It is not unlawful to
discharge an individual whose disability is reasonably related to his ability to
adequately perform the job-related responsibilities of his employment and where no
reasonable accommodation is available. See Wis. Stat. § 111.34(1)(b) and § 111.34(2)(a).
Here, the complainant's disability was reasonably related to his ability to perform the
job, since it rendered him completely unable to work for an extended period of time.
Further, while the complainant alleged that the respondent refused to accommodate his
disability, it does not appear that any reasonable accommodation was available. The
complainant testified that, from the date of his discharge, September 18, 1996, until the
date of the hearing, November 13, 1997, he was totally disabled and completely unable to
perform any work. Although, depending upon the circumstances, a reasonable accommodation
might entail holding a job open for a disabled employe who is away from the workplace on a
medical leave of absence, an employer cannot reasonably be expected to hold a job open
indefinitely when there is no indication that the employe will ever be able to return to
work. Janocik v. Heiser Chevrolet, (LIRC,
November 21, 1994). The complainant has not identified any other accommodation which would
have enabled him to preserve his employment relationship with the respondent, and the
commission is unaware of any accommodation that could have been made.

The commission has considered the remaining arguments raised by the complainant in his
brief, but finds them unavailing. Because the commission agrees with the administrative
law judge that no unlawful discrimination was established, the dismissal of the complaint
is affirmed.

NOTE: The commission has modified the administrative law judge's
decision to more completely and accurately set forth the facts and circumstances
surrounding the termination of the complainant's employment.